Pollution law case to be challenged in Berrien court

Lawyers contend statute has not been applied correctly.

Lawyers contend statute has not been applied correctly.

February 19, 2008|DEBRA HAIGHT Tribune Correspondent

BERRIEN SPRINGS -- The lawyers for two Oronoko Township residents charged with violating state pollution control laws plan to challenge applying the law to a residential open burning situation. Lansing attorneys Timothy Havis and Daniel Pawluk are representing David Billens, 44, and Angela Zech, 38, both of East Snow Road in Oronoko Township. Havis said last week they feel the law has not been applied correctly in this case and will submit a motion to that effect in Berrien County Trial Court in the next several weeks. The law the couple are accused of violating is part of the Natural Resources and Environmental Protection Act of 1994 and controls residential and commercial burning that injures others or interferes with their enjoyment of life and property. "One of our motions will be about the application of this statute," Havis said. "It was written for corporations; we've yet to find a time when an individual burning wood has been charged with violating it. We think it is a misapplication of the law." He said that if it can be applied to individuals, it would have major implications for all recreational burning. He said he knows of only one instance when an individual was charged with violating this statute and that was because he was burning toxic materials. Billens and Zech will next be in court on April 16 for a status conference and hearing on the motions he and his partner plan to submit. If the case isn't resolved then, the matter is scheduled for a jury trial on April 24 before Judge Scott Schofield. In addition to a motion about the application of the law, Havis said another motion would concern the information in the complaint itself. "From looking at the complaint, it's difficult to wrap one's mind around why it is a crime and what they actually did wrong," he said. Billens and Zech were arraigned in mid-January on the charges, which carry fines of up to $10,000 per day of violation. Last week was their first appearance in Berrien County Trial Court in Niles. The Oronoko Township couple are each charged with five counts of violating the state air pollution control act by allowing open fires to burn that caused injury to a neighbor's health on five occasions since May 2006. They are accused of having open fires that created excessive smoke which caused health problems for their neighbors, Ron and Arlene Watson, on five occasions since May 27, 2006. Ron Watson has existing health problems and is on oxygen. The Watsons brought their concerns to the Oronoko Township Board several times over the last two years before Police Chief Milt Agay discovered the state air pollution control law and got the Department of Environmental Quality involved in the case. Havis said that while he is sympathetic to the health problems of the Watsons, he's not convinced that the fires set by Billens and Zech are to blame since a tool-and-die manufacturer is nearby as are other residents who have wood-burning stoves.